R v Laa

[2010] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

R v LAA [2010] QCA 155

PARTIES:

R
v
LAA
(appellant)

FILE NO/S:

CA No 313 of 2009
DC No 3737 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

22 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2010

JUDGES:

Holmes JA and Cullinane and McMeekin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant found guilty of four counts (counts 1, 3, 4 and 6) of indecent treatment of a child under 16 with the aggravating circumstances that the child was under 12 and his lineal descendant – where appellant argued that the guilty verdicts were unreasonable because they were inconsistent with acquittals entered on counts 2, 5, 8 and 9 – where appellant argued that counts 2 and 5 were so inextricably linked with the counts of which the appellant was found guilty that the jury’s differing verdicts could not be rationally explained – where counts 2 and 5 were not the subject of preliminary complaint – where inconsistencies existed between the complainant’s accounts of the events comprising counts 8 and 9 – whether jury’s verdicts inconsistent

Kilby v The Queen (1973) 129 CLR 460; [1973] HCA 30, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered
R v ACK [2000] NSWCCA 180, cited
R v Asplin [1999] WASCA 148, cited
R v JJT, unreported, New South Wales Court of Criminal Appeal, No 60475 of 1996, 3 December 1997, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered
Williams v The Queen [2000] TASSC 182, cited

COUNSEL:

F Richards for the appellant
M Cowen for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA:  The appellant was convicted after a trial of four counts of indecent treatment of a child under 16, with the aggravating circumstances that the child was under 12 years and was his lineal descendant.  He was acquitted of a further six counts of indecent treatment and one count of rape of the same child.  He appeals against his conviction on the ground that the guilty verdicts were unreasonable because they were inconsistent with the acquittals on the other counts.

The complainant’s accounts of the offences

1. The complainant, B, is the appellant’s son.  B’s mother separated from the appellant when the boy was about five years old, but B spent weekends and some of the school holidays with his father, sometimes, but not always, in the company of his younger brother.  He was aged between six and ten years when, according to his statement to police, the offences took place, over four separate occasions.

1. On the first occasion, B was spending the mid-year school holidays with the appellant at the latter’s house in Charters Towers, and they were taking a midday rest.  B said that his father told him to play with his (the appellant’s) penis as if it were a car gear stick (count 1, unlawfully procuring B to commit an indecent act, of which the appellant was convicted).  Following that instruction, he masturbated his father to ejaculation.  His father also told him to treat his penis like a lollipop, so he sucked it for some minutes (count 2, unlawfully procuring B to commit an indecent act, of which the appellant was acquitted).  While he was masturbating the appellant, the appellant had also masturbated him (count 3, indecent dealing; the appellant was convicted). 

1. Those activities were repeated on a second occasion in the Charters Towers house, again while B was having a noontime rest.  He said that he and his father engaged in reciprocal masturbation for about 15 minutes, but on this occasion the appellant also encouraged him to slap his (the appellant’s) penis to produce ejaculation.  Once again, the appellant made him suck his penis.  The appellant’s inducing B to masturbate him constituted count 4 (unlawfully procuring B to commit an indecent act), his instruction of the child to suck his penis, count 5 (unlawfully procuring B to commit an indecent act), and his masturbation of B, count 6 (indecent dealing).  The appellant was convicted on counts 4 and 6 and acquitted on count 5.

1. The third occasion occurred when B was about 10 years old.  The appellant was then living in a caravan park at Boonah.  On the night of B’s arrival, on the boy’s account to police, the appellant gave him a magazine to look at; it contained pictures of naked girls (count 7 – wilfully exposing B to an indecent image).  The appellant once more engaged him in mutual masturbation (counts 8 and 9 – indecent dealing and procuring an indecent act).  The appellant was acquitted of all the counts relating to this occasion. 

1. Two days later, the fourth occasion of alleged sexual assault occurred.  B and his father attended a party at the house of B’s uncle and cousins.  Afterwards, B and his father slept on a mattress on the floor.  According to B, his father pulled his shorts down and he felt his father’s penis penetrate his anus (count 10).  B’s three cousins, a boy of 10 and another of 13 or 14, and a girl of 14 or 15, were, B said, also sleeping in the room.  The appellant was acquitted of the count of rape with which he was charged in respect of this allegation.

1. B was 12 when he was interviewed by police on 27 March 2006.  He said that he had not told anyone of what had happened until recently, when he had a conversation with his mother about it.  His mother, called in the Crown case at the trial, said that in March 2006, B told her that his father had sexually assaulted him in Boonah.  He had described what happened in these terms:

“… [At the relatives’ house] dad rubbed his penis on my bottom and at the caravan park he rubbed his penis on my bottom and made me stay there until the sperm came out.”

Later that evening they discussed the matter further and she asked him what his father had actually done.  She recounted the conversation thereafter as follows:

“… [B] said ‘He put his penis in my bum’ and I said to him, I said, ‘Did it really hurt?’ and [B] said, ‘No’ and I said, ‘Did you cry?’ and he said, ‘No’, and I said, ‘Well, he must have just rubbed it on the outside of your bottom then’ and he said, ‘But it still wasn’t right, was it, mum?’ and I said, ‘No, he had no right to do that to you.’”

The following day B told his mother that the events had started when his father lived in Charters Towers:

“Dad got me to play with his penis and he played with mine.”

That had happened, he said, in the daytime.

1. That afternoon, on his mother’s advice, B rang Kids Helpline and spoke to a counsellor, Ms Kershaw.  B told her he had been sexually assaulted.  He said that his father put his penis “into [his] bum” when they were in Boonah at his cousins’ place; that his father had given him pornography to read; and that his father had asked him to masturbate him until he had ejaculated.  Ms Kershaw arranged for a Child Safety officer to join in the call.  The Child Safety officer, Ms Rodriguez, asked B to explain what had happened.  He said that “a few times” when he was on contact visits to his father, his father had got him to play with his penis until sperm came out.  This had happened in the daytime in a bedroom at the Charters Towers house, when he was seven and when his younger brother was not there.  It had happened, too, in a caravan at Boonah.  He had also been anally penetrated by his father when they shared a bed at his uncle’s home.

1. B gave evidence at a pre-recorded hearing on 23 April 2009.  He identified photographs of the Charters Towers and Boonah houses and diagrams he had drawn depicting the layout of the Charters Towers house, the caravan and the caravan park in Boonah.  He said he recognised the bedroom in the Charters Towers house as “where the first and second offences took place”; by which, he said, he meant “the abuse”.  He was asked to say what abuse had occurred at the Charters Towers house and said it was:

“More so allowing myself to perform sexual acts on himself [the appellant].” 

What he referred to as to the Boonah offences was:

“The same sexual – sexual offences as in Charters Towers, the – allowing to perform sexual acts on me as such.”

He described being shown the pornographic magazine, the title of which he gave.  B referred to what had happened in the house at Boonah as “the rape”. 

1. When cross-examined, B said that the rape offence took place in the lounge room of the Boonah house at a time when his three cousins were asleep on two couches and a mattress in the room and he and his father were sharing a double mattress.  No noise was made in the course of the rape and none of the others woke.  He had not made any noise because he was afraid of his father.  Some 18 months later, he had seen a television program involving a father concerned about his son’s prospective homosexuality, which made him reflect on his father’s apparent homophobia.  That had precipitated his conversation with his mother about what had happened to him.

Evidence contradicting the complainant

1. One of the male cousins, C, who, according to B, had been sleeping on a mattress in the lounge room in Boonah on the night he was allegedly raped, gave evidence relevant only to the rape count.  He said that when B and his father stayed with his family, the appellant slept in the spare room.  On no occasion had he slept on mattresses in the lounge room with B, C and C’s siblings. 

1. The appellant gave evidence and denied ever having sexually molested his son.  His children had made contact visits to him.  He had never possessed a pornographic magazine or shown it to his children.  B had visited him in a period when he was living in a caravan at Boonah.  To the best of his recollection, when he stayed with his brother at Boonah he had slept in a spare room and might, he thought, have stayed in his niece’s room on one occasion.  He had not slept on a mattress with B in the lounge room.  He and his children did rest during the day, but not in the same bed.  For present purposes, the significant feature of the appellant’s evidence is that it was not limited in its application to any particular count, but went to contradict all of the complainant’s allegations of sexual abuse.  It could not, therefore, explain the return of different verdicts.

Counsel’s submissions

1. The appellant’s counsel argued that the acquittals on counts 2 and 5 in particular were an affront to logic and common sense.  Count 2 was so intimately and inextricably bound up with counts 1 and 3, and count 5 with counts 4 and 6, that if the jury were to have had a doubt about any one of the counts, it must logically have had a doubt about the others.  The existence of preliminary complaint evidence could not save the convictions on counts 1, 3, 4 and 6.  If the jury accepted, by reason of the preliminary complaints, that B was a reliable and credible witness, it ought equally to have accepted his evidence in relation to counts 2 and 5 and convicted on them.  The acquittals on those counts could only have been returned because the jury doubted B’s reliability in respect of them.  The verdicts on counts 1-6, therefore, were inexplicably inconsistent.  To a lesser extent, the acquittals on counts 8 and 9, the two counts of indecent treatment in the caravan, in respect of each of which B had made a complaint, were also difficult to reconcile with the guilty verdicts on the earlier counts.

1. Counsel for the appellant accepted that the acquittals on the remaining counts could rationally be explained.  On count 7, the charge of exposing a child to an indecent image, the jury might simply have thought the evidence was not sufficient to warrant a finding beyond reasonable doubt that the images shown in the magazine were indecent.  On count 10, the rape, because of the variation in the account B gave to his mother and because of his youth and inexperience, the jury might have thought him mistaken when he said that his father had actually penetrated him. 

1. Counsel for the respondent said that the verdicts were explicable by the absence of early disclosures in relation to counts 2 and 5, in contrast with the complaints made to B’s mother and Ms Rodriguez in respect of counts 1, 3, 4 and 6.  In respect of counts 8 and 9, the conduct in the caravan at Boonah, B’s account to the police, of mutual masturbation, was not consistent with what he told his mother, which was that his father had rubbed his penis on his bottom in the caravan.  The jury had been properly instructed to consider each count separately and to convict only if satisfied that its elements were proved beyond reasonable doubt; it had acted in accordance with those instructions.

Discussion

1. The test for whether jury verdicts are inconsistent is “one of logic and reasonableness”.[1]  Respect for the jury’s function should, however, make the court reluctant to reach a conclusion of inconsistency:

“Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.  In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.”[2]  (Citations omitted.)

[1]MacKenzie v The Queen (1996) 190 CLR 348 at 366.

[2]At 367.

1. The distinguishing feature of the evidence on counts 1, 3, 4 and 6, as counsel for the appellant pointed out, was that B complained of the masturbation involved in those offences to his mother and Ms Rodriguez; but in respect of the fellatio which was the subject of counts 2 and 5, there was no such preliminary complaint.  The evidence of preliminary complaint was admissible as going to the consistency and hence, the credibility, of B’s story.[3]  But the existence of complaint in respect of some of the counts, and its effect in buttressing B’s credit, did not mean that the jury must, acting rationally, have accepted his account on the remaining counts so as to convict on them also. 

   [3]Kilby v The Queen (1973) 129 CLR 460 at 472.

1. In R v Markuleski,[4] Spigelman CJ considered at some length circumstances in which apparent acceptance by a jury of a complainant’s evidence on some counts, but not on others, did not lead to a conclusion of inconsistency.[5]  Relevantly to the present context, he observed:

“In some cases a jury has acquitted on counts which were not the subject of the original complaint.  Although such a discrepancy is capable of affecting credit, it has not been found to require an acquittal on other counts.”

He cited a number of examples:  R v JJT,[6] R v ACK;[7] R v Asplin[8] and Williams v The Queen.[9]

[4](2001) 52 NSWLR 82.

[5]At 102.

[6]Unreported, New South Wales Court of Criminal Appeal, No 60475 of 1996, 3 December 1997.

[7][2000] NSWCCA 180.

[8][1999] WASCA 148.

[9][2000] TASSC 182.

1. The fact that the jury acquits on some counts does not mean that it has rejected the complainant’s evidence: 

“A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt ... A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.  It may simply reflect a cautious approach to the discharge of a heavy responsibility.”[10]

[10]MFA v The Queen (2002) 213 CLR 606 at 617.

1. There is, I think, a significant distinction to be drawn between rejection of a witness’ evidence as unworthy of credit and holding reservations about an honest witness’ reliability in particular respects.  In this case, the jury could reasonably have accepted B generally as a witness of truth while entertaining a doubt on some counts because it was not convinced of his reliability in relation to them.  The existence of preliminary complaint in respect of counts 1, 3, 4 and 6 might have inspired confidence in his reliability in respect of those counts to the level of satisfaction beyond reasonable doubt.  A failure to reach the same standard of confidence in respect of counts 2 and 5 where there was no preliminary complaint did not mean that the jury doubted his honesty.  In relation to counts 8 and 9, the obvious difficulty was the inconsistency in the complaints as made to B’s mother and as made to Ms Rodriguez.  The jury could reasonably have accepted the variation as the product of confusion, without, again, being caused to doubt B’s honesty.

1. As a matter of logic and reasonableness, the acquittals on some counts do not so reflect on B’s credibility as to render guilty verdicts on the others inconsistent.  The differing verdicts may simply reflect the jury’s having followed the trial judge’s instructions to consider each count separately and not to convict unless satisfied beyond reasonable doubt.  It was, in my view, open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on the counts on which it convicted him, notwithstanding unwillingness to convict him on the others. 

Order

1. I would dismiss the appeal against conviction.

1. CULLINANE J:  I have read the draft reasons of Holmes JA and agree with the order she proposes.

1. McMEEKIN J:  I have read the reasons in draft of Holmes JA.  I agree with her Honour’s reasons and with the order that she proposes.